UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

STATE NATIONAL INSURANCE COMPANY and STAR INSURANCE COMPANY,

Plaintiffs/Counter-Defendants,

vs.

KEVIN WHITE,

vs.

Defendant, Counter-Plaintiff, Third Party Plaintiff, and Third Party Counter-Defendant,

HILLSBOROUGH COUNTY, FLORIDA,

Third Party Defendant and Third Party Counter-Plaintiff.

ＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭＭｾＯ＠

ORDER

Case No. 8:10-cv-894-T-27TBM

BEFORE THE COURT is Kevin White's Motion for Summary Judgment (Dkt. 40) with

respect to claims involving Hillsborough County, Florida (the "County").' In the motion, Kevin

White ("W hite") claims that he is entitled to summary judgment on ( I) his third-party claims against

the County for declaratory judgment and breach of contract, and (2) the County's counterclaims for

subrogation and contribution. For the reasons set forth below, Kevin White's Motion for Summary

Judgment (Dkt. 40) is DENIED with respect to his claims against the County and GRANTED as

to the County's counterclaims for contribution and subrogation.

1 The Court has separately addressed Kevin White's Motion for Summary Judgment with respect to the Plainti ffs. See, e.g., Okt. 69.

State National Insurance Co. et al v. White Doc. 87

Dockets.Justia.com

Factual Background 2

White was at all relevant times a member of the Board of Commissioners for the County.

As a public official employed by the County, White was an " Insured" under a "Public Entities

Excess" insurance policy held by the County (the "Policy") . The Policy contained a Self-Insured

Retention Endorsement (Form SNS 10 I 0) (the "SIR Endorsement") which modified the insurance

coverage under the Policy, providing that coverage was limited to amounts in excess of a self-in sured

retention of $350,000 per occurrence (the "SIR Retention") . The SIR Endorsement also provided:

4. Tn the event of any occurrence which, in the opinion of any INSURED, is lik ely to give ri se to liability under this Policy, no costs or expenses, other than for immediate first aid to others, shall be incurred by any INSURED, except at his or her own cost, peril and expense, without the written consent of the company. The NAMED INSURED shall be obligated to

A. provide {Ill adequate defellse alld illvestigatioll of allY actioll for or lIotice of allY actual, potelltial or alleged damages, allll

B. accept any reasonable offer or settlement within the NAMED INSURED'S self-in sured retention,

and, in the event of any NAME D INSURED' S failure to comply with any part of this paragraph, the company shall not be liable for any damages or costs or expenses resulting from such occurrence.

SIR Endorsement (emphasis added).

In May, 2008, Alyssa L. Ogden ("Ogden" ), a former aid of White, filed suit against White

and the County in state court asserting claims for (a) sex discrimination in viol ation of 42 U.S.C.

§§ 1983 and 1988, (b) sexual harassment in violation of the Florida Civil Rights Act of 1992, Fla.

2 For a more detailed factual and procedural background, see th e Court' s Order entered on October 19, 20 II (Dkt. 69).

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Stat.§§ 760.01-760.11 ("FCRA"), and (c) retali atory discharge in violation of the FCRA. See, e.g. ,

Second Amended Complaint (Dkt. 37-2) ("Ogden Complaint") . The defendants removed the acti on

to federal court. See Ogden v. Hill sborough County, Flor ida, and White, No. 8:08-cv-1187-RAL-

TBM (M. D. Fla.) (hereinaft er, the "Ogden Litigation") .

A lthough Ogden asserted c laims under both § 1983 and the FCRA, only Ogden's claims

under § 1983 were submitted to the jury. See Ogden Liti gati on (Dkt. 144), Tri al Transcript IV

(Okt. 37-1 9), pp. 283-84. The jury ultimately returned a verdict in favor of Ogden, fi nding that

( I) Ogden was subjected to sexual harassment or unwelcome advances by White, and (2) Ogden was

terminated as part of the sexual harassment or because she rejected Whi te's unwelcome sexual

advances. See Ogden Verdict (48-4), p. I. Final judgment was entered against the County and

White in the amount of $75,000. See Judgment in Civil Action (Ok!. 48-11) (the "Ogden

Judgment").

The County's insurer disavowed any duty to defend or indemnify White under the Poli cy and

the County refused to furni sh White a defense with respect to Ogden's claims. Thus, White was

required to pay fo r his own defense costs in the Ogden Li tigati on. The County subsequently agreed

to pay $278,000 to satisfY the Ogden Judgment and settl e Ogden's c la im fo r attorney's fees and

costs. See Full and Complete Waiver and Release of Li abili ty (Ok!. 4 1-1) (the "Ogden

Settlement"), p.I .3

Procedural Bac1<ground

The County's insurers commenced this acti on by filin g a two count complaint fo r declaratory

relief (Ok!. 5). White subsequentl y fi led a Third Party Complaint against the County asserting

) The Ogden Sett lement expressly provides that by agreeing to the settlement " [Ogden] do[es] not waive any ri ght s or release Kev in White, th e co -d efenda nt in th e lawsui t. " Ogden Settl ement, p. 3.

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claims for declaratory relief and breach of contract whereby he seeks payment and/or reimbursement

of the attorney's fees and costs he incurred in the Ogden Litigation (Okt. 6). The County filed

counterclaims against White for subrogation, equitable indemnification, and contribution seeking

to recover its costs and expenses incurred in settling the Ogden Litigation (Ok!. 17).

The Court previously dismissed the County's counterclaim for equitable indemnification with

prejudice. See Ok!. 29. White now moves for summary judgment on his claims against the County

as well as the County's claims for subrogation and contribution. The County did not file a motion

for summary judgment.

Standard 011 Summary Judgment

Summary judgment is proper if, following discovery, the pleadings, depositions, answers to

interrogatories, affidavits and admissions on file show that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law. Celolex Corp. v.

Calrel/, 477 U.S. 317,322 (1986); Fed. R. Civ. P. 56( c). "An issue of fact is 'material' if, under the

applicable substantive law, it might affect the outcome. of the case." Hickson Corp. v. N. Crossarm

Co., 357 FJd 1256, 1259-60 ( II th Cir. 2004). "All issue of fact is ' genuine' if the record taken as

a whole could lead a rational trier of fact to find for the nonmoving party." Id. at 1260. All the

evidence and factual inferences reasonably drawn from the evidence must be viewed in the light

most favorable to the nonmoving party. Adickes v. S.H Kress & Co., 398 U.S. 144, 157 (1970);

Jackson v. BellSoulh Telecomms., 372 FJd 1250, 1280 (11th Cir. 2004).

Once a party properly makes a summary judgment motion by demonstrating the absence of

a genuine issue of material fact, the nonmoving party must go beyond the pleadings through the use

of affidavits, depositions, answers to interrogatories alld admissions on file, and designate specific

facts showing that there is a genuine issue for trial. Celolex, 477 U.S. at 323-24. The evidence must

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be significantly probative to support the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986).

The Court will not weigh the evidence or make findings offact. Anderson, 477 U.S. at 249;

Morrison v. Amway Corp., 323 F.3d 920, 924 (II th Cir. 2003). Rather, the Court's role is limited

to deciding whether there is sufficient evidence upon which a reasonable jury could find for the non-

moving party. Id.

Discussion

White's Third-Party Claims Agaillst the COlillty

White moves for summary judgment on his declaratory judgment and breach of contract

claims in which he alleges that the County had a duty to defend him in the Ogden Litigation and, as

a result, is now obligated to reimburse him for the attorney' s fees and costs he incurred. Under

Florida law, there is no common law duty to defend. See, e.g., Allstate Ins. Co. v. RJT Entell}., Inc.,

692 So.2d 142, 144 (Fla. 1997); Budget Rent A Cal' Sys., Inc. v. Taylor, 626 So.2d 976, 979 (Fla. 4th

DCA 1993). Thus, White must point to an express contractual provision that obligated the County

to provide him with a defense in the Ogden Litigation.

White attempts to establish a contractual duty to defend based on the SIR Endorsement and

his alleged status as a third-party beneficiary. Specifically, White argues that he was a third-party

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beneficiary under the Policy and that the County breached its alleged duty to provide a defense under

the SIR Endorsement.'

Initiall y, it must be noted that White's attempt to establi sh his status as a third-party

beneficiary under the SIR Endorsement is inconsistent wi th his undisputed status as an insured under

the Policy. Nonetheless, because the Court concludes that the SIR Endorsement does not impose

any duty on the County vis-a-vis White under the Policy, the result is the same whether White seeks

to enforce the SIR Endorsement against the County as either an additional insured or a third-party

beneficiary.

The plain language of the SIR Endorsement imposes on the County a duty to defend any

claim arising from an occurrence that is lik ely to give rise to li abilit y under the Poli cy. SIR

Endorsement, ｾ＠ 4.a. Thus, the County's obligation to defend is clear vis-a-vis the insurance

company. It is equally clear, however, that this provision was not intended to give White additional

rights under the Policy vis-a-vis the County. The plain language of the SIR Endorsement

demonstrates that the provision at issue was included to protect the insurance company from excess

l iability that might arise if the County fail ed to adequately respond to and defend claims prior to the

time the SIR Retention was satisfied. See id., ' 14 ("in the event of any of the NAMED INSURED'S

Florida: 4 The fo ll owing elements are required for a calise of action for breach of a third party beneficiary contract in

I) a contract between A and B; 2) the clear or manifest intent of A and B that the contract primarily and directly benefit the third party; 3) breach of the contract by A or B; and 4) damages to the third-party beneficiary resulting ITom the breach. Foundation Health v. Westside EKG Associates, 944 So.2d 188, 194-95 (Fla. 2006). It is important to note that the third party need not be mentioned by name in the contract to be deemed a third party beneficiary. Polo Ralph Lauren, L.P. v. Tropical Shipping & Canst. Co., Ltd. , 2 15 F.3d 12 17, 1222 ( II oh Cir. 2000).

;itlantic Marine Florida, LLC v. Evanston Ins. Co., 721 F.Supp.2d 1244, 1250 (M.D. Fla. 2010) (internal footnotes omitted). Th e Court rejects White 's argument th at the undi sputed evidence reveals that "i t was th e 'clear and manifest' intent of the County to 'primaril y and directly benefit' White under the SIR Endorsement." Dkt. 40, p. 2 1.

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failure to comply with any part of this paragraph, the company shall not be liable for any damages

or costs or expenses resulting from any such occurrence").' As a result, White has failed to

demonstrate that based on the undisputed facts he was an intended third-party beneficiary of the SIR

Endorsement or that he is otherwise entitled to enforce the SIR Endorsement against the County.

The County's Coullterclaims for Contributioll ami Subrogation6

The County's claims for contribution and subrogation are essentially alternative claims and

the proper legal theory to be appli ed depends on whether the County and White were joint

tortfeasors' with respect to damages awarded in the Ogden Litigation.s That is, contribution9 is the

5 Thi s interpretation is consistent with Florida law that allows th e County to provide a defense for it s employees, but requires the County to reimbur se an employee's legal fees and costs only if the employee prevail s in the underlying liti gation. See Fla. Stat. §§ 111.07 and 111.071. In contrast, reading the SIR Endorsement to require the County to defend White would be inconsistent with Florida law that pennits the County to recover defense costs paid from public funds on behalfofan employee " who is found to be personally li able by virrue or acting outside the scope of his or her employment , or was acting in bad fa ith , with maliciou s purpo se , or in a mann er ex hibiting wanton and willfu l disregard of human ri ghts, safety, or properry .... " Fla. Stat. § 111.07

6 The Court summaril y rejects White's argument that he is entitled to summary jud gment on the County's claims for contribution and subrogation because th e County did not satisfy the entir e Ogden Judgment. See Fla. Stat. § 768.3 I (2)(d) ("A tortreasor who enters into a settlement with a claimant is not entitled to recover contribution from another tort feasor whose li abi lit y for th e injur y or wrongfu l death is not extinguished by th e settl ement ... . ") ; Dade COl/nty School Bd. v. Radio Station WQBA, 73 1 So.2d 638, 646 (Fla. 1999) (holding that subrogation is only proper when subrogee has paid of entire underlying debt). The evidence of record reflects that the County did satisfy the Ogden Judgment and strollgly suggests that th e Ogden Settl ement resolved Ogden's claim for attorney's fees and costs. There was no order entered in the Ogden Liti gation establi shing the amount of attorney's fees recoverable from the County and/or White and it is unclear whether Ogden int ends (or remains entitled) to pursue a separate claim for attorney's fees against Whit e. At a minimum , disputed issues of material fact exist as to whether the County sati sfied the entire Ogden Judgment.

7 A § 1983 claim is not based on a statutory violat ion per se, but rather amounts to a constitutional tort. See, e.g, Katkav. Mill s, 422 F.Supp.2d 1304, 1310 (N.D. Ga. 2006) (noting that claims under section 1983 are based on constitutional tOI15).

8 Florida law does not recognize a right of subrogation between joint tortfeasors and any right of recovery between joint tortf easors must be through th e legal remedy of contr ibution which is provid ed in § 768.31, Florid a Statutes. See Florida Patients Compensation Fund v. SI. Paul Fire and !vlarine Ins. Co. , 535 So.2d 335, 336 (F la. 4t h

DCA 1988), decision approved, 559 So.2d 195, 197-99 (Fla. 1990).

9 Section 768.31, Florid a Statutes, provides: "Except as otherwise provided in thi s action, when two or more persons become jointl y or severall y liable in tort for the same injur y to person or property , or for the same wrongfu l death, th ere is a ri ght of contribution ... in favor ofa tortf easor who has paid more than her or hi s pro rata share of the common li ability .... " Fla. Stat. § 768.31(2).

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proper legal theory if the County and White were joint tortfeasors, while subrogation'O is the proper

legal theory if White and the County were not joint tot1feasors. Because the jury verdict in the

Ogden Litigation did not apportion fault between White and the County," the Court must initially

determine whether the jury verdict in the Ogden Litigation conclusively established that the County

was at least partly at fault for the sexual harassment and discrimination complained of by Ogden (i.e.,

whether the County was ajoint tortfeasor).

A review of the record, including the judgment imposing joint and several liability against

White and the County, establishes that the County was at least partly at fault for the violation of

Ogden's civil rights and, as such, was a joint tort feasor for purposes of Florida law governing

contribution. This conclusion is bolstered by the fact that political subdivisions may not be held

liable under § 1983 based on a theory of ｲ･ｾｰｯｮ､･｡ｴ＠ superior or vicarious liabilit y. See Monell v.

Department a/Social Services, 436 U.S. 658, 690-94 (1978). While the Ogden Court's instruction

to the jury could be interpreted to adopt a respondeal superior theory of liability , 12 this instruction

was based on the Ogden COUl1's conclusion that the County failed to offer a meaningful review

process to respond to Ogden's claim that she was unlawfully terminated by White. See Maschmeir

to Equitable subrogation is generally appropriate when: (I) the subrogee made the payment to protect his or her own interest, (2) the subrogee did not act as a volunteer, (3) the subrogee was not primarily liable for the debt, (4) the subrogee paid off the entire debt, and (5) subrogation would not work any injustice to the rights ofa third party. Dade Counly School Bd. v. Radio Slolion WQBA, 731 So.2d 638, 646 (Fla. 1999).

II As the Court previously noted in denying White's motion to dismiss, section 768.3 I (4)(a), Florida Statutes, expressly allows a contribution claim to be enforced in a separate action. See Fla. Stat. § 768.31 (4)(a) ("Whether or not judgment has been entered in an action against two or more tortfeasors for th e same injury or wrongful death, contribution may be enforced by separate action."). As a result, the Court cannot conclude as a matter of law that the County waived its claim for contribution by failing to request that the jury apportion fault in the Ogden Litigati on. Cj Fla. Stat. § 768.31(4)(1) ("The judgment of the coul1 in determining the liability of several defendants to the claimant for an injury or wrongful death shall be binding as among such defendants in detennining their right to contribution.").

12 The Ogden Court instructed the jury: " When sexual harassment is carried out by a public offic ial with immediate or successively higher authority over a Plaintiff culminating in an adverse tangible employment action against the Plaintiff , the Defendant employer is re spo nsib le under law for such behavior. An adverse tangibl e employment action includes the tennination of employ men!." Ogden Jury Instructions (Ok!. 37-10), p. 9.

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v. SCOII, 269 Fed. Appx. 941,943-45 (11'h Cir. 2008) (unpublished); Templeton v. Bessemer Water

Serv., 154 Fed. Appx. 759, 764-66 (ll' h Cir. 2005) (unpublished); see also Martinez v. City o/Opa-

Locka, 971 F.3d 708, 715 ( 11 'h Cir. 1992)." Thus, the County's remedy, if any, against White is

limit ed to the legal remedy of contribution.

White argues that he is entitled to summary judgment on the County's claim for contribution

because federal law does not provide for contribution in cases arising under 42 U.S.C. § 1983. See

Northwest Airlines, Inc. v. Transport Workers Union, 451 U.S. 77 (1981). In response, the County

argues that even though federal law does not provide a private right to contribution under § 1983,

Florida law allowing contribution between joint tortfeasors should be appli ed to " fill the gap" in

federal law under 42 U.S.C. § 1988.14

While the County suggests there is a split of authority as to whether there is a right to

contribution under 42 U.S.c. § 1983, the vast majority of courts to have addressed the issue have

found that no claim for contribution is available in actions arising under § 1983. See, e.g., Crews

v. Count yo/Nassau, 612 F.Supp.2d 199, 208 (E.D.N. Y. 2009) (collecting cases); Hurley v. Horizon

Project, Inc. , No. CV -08-1365-ST, 2009 WL 5511205, at *3 (D. Or. Dec. 3, 2009) (collecting cases).

The Court agrees with the majority of courts to have addressed the issue and concludes that the

IJ In denying the County's motion for entry of judgment as a matter of law, the Ogden Court suggested that the Cou nty 's liability arose, at least in part, from th e County's failure to hav e in place a meaningfu l rev iew process capable of overturning White's decision to tem,inate Ogden. See Order (Dkt. 37-22), p. 5; see atso id at p. 7 ("The Court continue s to be puzzled by the County's arg ument that becau se it was not the " movin g force " behind White 's predatory acts of di sc rimination resulting in Ogden's terminat ion , it canno t be liable for damage s susta in ed by Ogden as a consequence of White's acts.").

14 Section 1988 allows federal cou rt s to apply state law when federal law "is not adapted to the object [protecting and vindicating civil ri glHs), or are deficient in the provisions nece ssary to furnish suitabl e remedies and puni sh offenses against law .... "

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County may not pursue a claim for contribution against White for claims ari sing under § 1983."

Accordingly, it is ORDERED AND ADJUDGED that:

(I) Kevin White's Motion for Summary Judgment (Dkt. 40) is DENIED with respect

to his Third Party Claims against the County and GRANTED as to the County's Counterclaims for

contribution and subrogation.

(2) Within fourteen (14) days from the date of this Order, White is directed to show

cause why summary judgment should not be entered in favor of the County on all claims asserted

by White in the Third Party Complaint. See Fed. R. Civ. P. 56(f)(1).

J f) 7J;:.. DONE AND ORDERED in chambers this ....Lt1...-day of November, 2011.

Copies to: Counsel of Record

ｾ ｉｔｔｅｍｏｒｅ＠Umted States District Judge

Il The Court declin es the County's invi tati on to invoke § 1988 and apply Florida law all owing contribution between joi nt tortfeasors. Invoking § 1988 to " furn ish a suitable remedy" between two defendants that both were found respons ible for viola tin g an individu al 's con sti tut iona l ri ght s wou ld be in co nsis tent wi th ex pre ss langu age of § 1988 and the purposes of § 1983. See Wriglu v. Reynolds, 703 F.Supp. 583, 592 (N.D. Tex. 1988)(" Secti on 1988 does not speak to the rights of those who violated the civil ri ghts of another."); Mason v. City 01 New York, 949 F.Supp. 1068, 1077 (S.D.N. Y. 1996) (noting that permitting a right to contribution in the § 1983 context may weaken one of the primary purposes of § 1983 (i.e. , deterrence)); see also Banks ex rei. Banks v. Yokemick, 177 F.Supp.2d 239, 249 (S.D.N.Y. 20 II ) ("[Section 1983's] central aim may be viewed as a double edged sword whose dual aspect is designed to protect and deter, to benefit the victim whi le penali zing the offender.").

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